Post-Divorce House Sale Contracts in Delaware

To understand whether your post-divorce house sale contract is enforceable in Delaware, you need to look at three overlapping bodies of law:

Key takeaway: Delaware is not a community property state. The Family Court has discretion to divide marital property equitably (not necessarily 50/50), and the decision to sell the marital home is part of that equitable distribution analysis.

This statutory hook was clarified and expanded by the Delaware legislature specifically to pull post-divorce property-division disputes out of Chancery and into Family Court. The leading case is Savage v. Savage, 920 A.2d 403 (Del. Ch. 2006), where Chancery explained that the legislature intended Family Court to handle these exact situations.

This statute further cements Family Court as the proper forum when ex-spouses fight over the marital home.

Delaware courts apply traditional contract principles. For a real estate sale contract to be specifically enforceable, it must include:

• Identification of the property: Legal description or at least a street address that can be made certain.
• Price or pricing mechanism: Fixed dollar amount, or objective formula (e.g., “average of two independent appraisals”).
• Allocation of proceeds: Clear statement of how net sale proceeds are divided.
• Timing: Deadline for listing, price reductions, and closing—or at least a determinable method for setting those deadlines.
• Parties’ obligations: Who signs what, who pays what, who cooperates how.

Even if your contract satisfies the statute of frauds and has all essential terms, Delaware Family Court can still refuse to enforce it if:

Delaware applies unconscionability analysis to marital agreements. The test has two prongs:

• Procedural unconscionability: Was the agreement signed under pressure, without counsel, with unequal bargaining power, or as a “take-it-or-leave-it” deal?
• Substantive unconscionability: Are the terms grossly one-sided, leaving one spouse with far less than their equitable share?

Cases like Stewart v. Stewart and the premarital agreement case Silverman v. Silverman show Delaware courts are willing to strike down or reform agreements that fail this test.

For separation and property-settlement agreements, Delaware courts look at:

• Did both parties have counsel (or knowingly waive it)?
• Was there adequate disclosure of assets and liabilities?
• Was the agreement signed voluntarily, or under threat of litigation/delay?

Holding: Chancery Court explained that 13 Del. C. § 507 and 10 Del. C. § 921 give Family Court exclusive jurisdiction over disputes between ex-spouses about jointly titled marital real property and contracts concerning division of marital property. Even though specific performance is traditionally a Chancery remedy, the legislature moved these disputes into Family Court.

Takeaway: If you want to enforce a post-divorce house sale contract in Delaware, you file in Family Court, not Chancery.

Holding: Delaware Supreme Court clarified that Family Court retains authority to enforce separation agreements even post-divorce, and res judicata does not bar enforcement if the specific claim wasn’t previously litigated.

Takeaway: You can bring an enforcement action in Family Court for a post-divorce property agreement, even if the divorce is long final.

Holding: Separation agreements are enforceable as contracts under ordinary contract principles; courts interpret them using standard rules of contract construction.

Takeaway: Your house sale agreement is a contract—but a contract that Delaware Family Court can police for fairness and unconscionability.

If you have a valid, definite, fair contract, Delaware Family Court can:

• Order specific performance: Compel your ex to list the house, sign listing agreements, accept qualifying offers, sign closing documents.
• Appoint a special commissioner or master: To act on behalf of a non-cooperating spouse.
• Award attorneys’ fees: Under 13 Del. C. § 1515, the court can order one party to pay the other’s legal fees, especially if obstruction is unreasonable.
• Hold in contempt (if part of decree): If the sale obligation was incorporated into the divorce judgment, Family Court can use contempt powers.

While Delaware has its own statutory and case-law framework, the core principles for enforcing post-divorce house sale contracts are remarkably similar across the United States:

Nationwide, you typically encounter:

• Court order or incorporated agreement that allocates marital assets.
• May say “the parties shall sell the home” or “Spouse A shall buy out Spouse B.”
• Often lacks the detail needed for a real-estate transaction (price, deadlines, cooperation obligations).

• Detailed agreement that satisfies state statute-of-frauds requirements.
• Includes essential terms: property description, price/formula, timing, allocation of costs and proceeds.
• May be a separate document or incorporated into the PSA.

Every U.S. state has a statute of frauds for real estate. Common requirements:

• Writing: Contract must be in writing (not just oral).
• Signature: Signed by the party to be charged (the person you want to compel).
• Essential terms: Property, price, and material terms must be stated or determinable.

Partial performance exception: Some states allow enforcement of unsigned/incomplete agreements if one party has substantially performed (e.g., moved out, paid for repairs, etc.). But this is risky and state-specific.

For real estate, money damages are often inadequate (every parcel is unique). Courts across the U.S. will grant specific performance if:

• The contract is definite and certain in its terms.
• Consideration is adequate.
• The plaintiff is ready, willing, and able to perform.
• There’s no serious unconscionability or inequitable hardship.

States vary on which court hears post-divorce property enforcement:

• Family court states (like Delaware): Have specialized family courts with continuing jurisdiction over marital property division. If the sale obligation is part of the divorce judgment, family court usually retains jurisdiction to enforce.
• Unified/general jurisdiction states: May not have a separate family court. The same court that handled the divorce may also handle contract enforcement, or you might file a separate civil action for specific performance.
• Chancery/equity courts (like Delaware historically): Some states have separate equity courts, but most have folded equity jurisdiction into general trial courts.

Nationwide, courts scrutinize post-divorce agreements for:

• Voluntariness: Was it signed under duress, pressure, or threat?
• Representation: Did both parties have independent counsel?
• Disclosure: Were assets and liabilities fully disclosed?
• Substantive fairness: Are the terms grossly one-sided?

Even if a contract is facially valid, courts have equitable power to reform or refuse enforcement if it shocks the conscience.

California provides a useful contrast to Delaware because California is a community property state with its own robust family-court enforcement system.

Key difference from Delaware:

• California: Community property is divided 50/50 (absent agreement or specific exceptions). The marital home, if acquired during marriage, is community property and gets split equally.
• Delaware: Equitable distribution—Family Court divides property fairly, not necessarily equally. Factors in 13 Del. C. § 1513 give the court discretion.

California Family Code gives family courts broad authority to:

• Order sale of the family home when necessary to accomplish equal division of community property.
• Determine the manner of sale (listing price, deadlines, etc.).
• Appoint a receiver or elisor to sign documents if one spouse refuses.

California Family Code §§ 290–292 provide enforcement tools:

• Contempt: If the MSA is incorporated into the judgment, violation can be punished as contempt.
• Specific performance: Family court can order specific performance of property division terms.
• Fees: Attorney’s fees are often available to the prevailing party.

California Civil Code § 1624(a)(3) requires real estate contracts to be in writing. Same as Delaware: no writing, no enforcement (absent partial performance or estoppel).

Whether you’re drafting a post-divorce house sale agreement, reviewing an existing contract for enforceability, or need to enforce (or challenge) an agreement in Delaware Family Court, I can help.

• Attorney-led, not paralegal: I personally handle every review and draft. You’re working with a licensed attorney (California Bar #279869) who focuses on contract enforcement and family-law intersections.
• Delaware-specific expertise: Deep knowledge of 13 Del. C. § 507, § 1513, 6 Del. C. § 2714, and Delaware Family Court procedures.
• Practical, enforceable drafting: I don’t just make contracts “look legal”—I make them enforceable in Delaware Family Court with clear remedies, deadlines, and cooperation obligations.
• No consultations: This is paid, strategic legal work. Consultations are billed at my hourly rate or as part of a fixed-fee engagement.